Rajasthan High Court - Jaipur
Ramnarayan Son Of Nathu vs Mahaveer Son Of Sobhag Mal Jain on 17 January, 2023
Author: Anoop Kumar Dhand
Bench: Anoop Kumar Dhand
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 99/2023
1. Ramnarayan Son Of Nathu, Resident Of Modi Ki Chowki,
Thana Kotwali, Civil Lines , Tonk (Rajasthan).
2. Bhura Son Of Nathu, Resident Of Modi Ki Chowki, Thana
Kotwali, Civil Lines , Tonk (Deceased) Through His Legal
Heirs.
2/1. Smt. Parwati wife of Late Bhura, Resident of Modi Ki
Chowki, Thana Kotwali, Civil Lines, Tonk (Rajasthan)
----Petitioners
Versus
1. Mahaveer Son Of Sobhag Mal Jain, Resident Of Ward No.
14, Town Todaraisingh, Thana Todaraisingh, District Tonk
(Rajasthan).
2. Pradeep Son Of Sobhagh Mal Jain, Resident Of
Todaraisingh, District Tonk (Rajasthan).
3. The State Of Rajasthan, Through Public Prosecutor.
----Respondents For Petitioner(s) : Mr. R.N. Mathur, Sr. Adv. with Mr. Bajrang Lal Choudhary, Adv.
For Respondent(s) : Mr. Deshraj Ghoshingha, PP
HON'BLE MR. JUSTICE ANOOP KUMAR DHAND
Reserved on : 10/01/2023
Pronounced on : 17/01/2023
Reportable
ORDER
(1) The issue in this petition is that "whether the parties to
the litigation can be allowed to reopen the concluded proceedings which have been upheld up to Hon'ble Apex Court?" and "whether the last word spoken and law laid by the Highest Court of the Land must be given effect to?"
(2) This petition under Section 482 of the Code of Criminal Procedure (for short "Cr.P.C.") has been filed against the impugned (Downloaded on 24/01/2023 at 11:46:47 PM) (2 of 13) [CRLMP-99/2023] order dated 20.10.2022 passed by Sub Divisional Magistrate, Todaraisingh, District Tonk, by which directions have been issued to the Tehsildar and Station House Officer (for short "SHO"), Todaraisingh to handover the land bearing Khasra nos. 78, 90, 91, 92, 93, 94, 95, 96 and 97 Kita 9 Rakba 3.21 hectare, situated at Village Ojhapura, Tehsil Todaraisingh from Party No. 2 Ramnarayan & others to Party No. 1 Mahaveer Singh and others.
(3) The facts leading to the present petition in nutshell are that the SHO filed a criminal complaint under Section 145 Cr.P.C.
before the Court of Assistant Collector-cum-Executive Magistrate, Todaraisingh (for short "the Magistrate"), alleging therein that there is dispute between Mahaveer and others (Party No. 1) and Ramnarayan, Bhura and others (Party No. 2) over agriculture land bearing Khasra nos. 78, 90, 91, 92, 93, 94, 95, 96 and 97 Rakba 12 Bigha 11 Bishwa (hereinafter referred as "land in question"). Both parties claimed their possession over the land in question. (4) The learned Magistrate passed a preliminary order on 03.12.1998 and issued notices to the respective parties. Thereafter the SHO Todaraisingh submitted an application to attach the land in question and appoint Receiver for cultivation of the land in question as both parties claimed their possession and there is possibility of breach of peace. Upon this report, the learned Magistrate attached the property in question on 15.05.2001 and appointed SHO Todaraisingh as Receiver over the land.
(5) Feeling aggrieved by this order, the petitioners submitted Criminal Revision Petition No. 42/2001, but the same was dismissed by the Revisional Court vide order dated (Downloaded on 24/01/2023 at 11:46:47 PM) (3 of 13) [CRLMP-99/2023] 20.06.2001. The petitioners challenged both orders dated 15.05.2001 and 20.06.2001 before this court by way of filing S.B. Criminal Misc. Petition No. 633/2001 and the same was allowed and both orders were quashed and as a consequence thereof, the possession of the land in question was handed over to the petitioners/Party No. 2.
(6) The land in question remained under attachment under Section 145 Cr.P.C. till 2016 and finally the learned Magistrate decided the complaint vide order dated 24.10.2016 and declared the possession of the petitioners over the land in question. (7) Aggrieved by the order dated 24.10.2016, Party No. 1 i.e. respondent Mahaveer and others submitted a Criminal Revision Petition No. 56/2016 before the Court of Additional Sessions Judge, Malpura District Tonk and the same was allowed vide order dated 30.10.2018 and it was held that Party No. 2 failed to prove that they were in possession of the land in question on 03.12.1998 and two months prior. The Revisional Court quashed the order dated 24.10.2016 passed by learned Magistrate and declared the possession of Party No. 1 over this land on 03.12.1998 and prior to two months before 03.12.1998. (8) The petitioners challenged the above order dated 30.10.2018 before this court by way of filing S.B. Criminal Misc. Petition No. 7361/2018 and the same was dismissed on 30.09.2022 by observing thus :-
"Learned SDM in its order wrongly came to the conclusion that petitioners were in possession of the land two months prior to 03.12.1998. No evidence produced by the petitioners for their possession. Revisional court in its order clearly stated that witnesses produced by the respondents had not crossed by the petitioners. Evidence of the witnesses produced by the petitioners have not consistency in their statements. Even petitioner DW1 (Downloaded on 24/01/2023 at 11:46:47 PM) (4 of 13) [CRLMP-99/2023] Ramnarayan in his statement admitted the fact that the possession of the disputed land with respondents. So, in my considered opinion, order of revisional court does not suffer from illegality or infirmity. So, present petition, being devoid of merits and liable to be dismissed"
(9) Feeling aggrieved and dissatisfied by this order dated 30.09.2022, the petitioners knocked the doors of Hon'ble Supreme Court by way of filing Petition for Special Leave to Appeal (Crl.) No. 10956/2022 and the same was also dismissed on 25.11.2022 by the Hon'ble Apex Court by observing as under :-
"Having heard learned counsel appearing for the petitioners at considerable length and after going through the record, we do not find any ground to interfere with the impugned order dated 30-09-2022 passed by the High Court of Judicature for Rajasthan, Bench at Jaipur.
The Special Leave Petition is, accordingly, dismissed.
We are, however, informed that civil suit filed by the petitioners, way back in the year 1989, is still pending. The particulars of the civil suit have not been furnished. In case any such civil suit is still pending, the civil court is directed to decide the same expeditiously and preferably within a period of six months from today.
The Special Leave Petition is disposed of in the above terms.
Pending applications filed in the matter also stand disposed of"
(10) Thereafter in pursuance of the order dated 30.10.2018 passed by the Additional Sessions Judge, Malpura, District Tonk and in pursuance of the order dated 30.09.2022 passed by this court in S.B. Criminal Misc. Petition No. 7361/2018, the learned Magistrate directed the Tehsildar and SHO Todaraisingh to handover the possession of the land in question to Party No. 1 Mahaveer and others, vide order dated 20.10.2022. (11) Feeling aggrieved by the impugned order dated 20.10.2022, the petitioners have invoked the inherent powers of this court by way of filing this petition under Section 482 Cr.P.C. (Downloaded on 24/01/2023 at 11:46:47 PM)
(5 of 13) [CRLMP-99/2023] (12) Learned senior counsel for the petitioners submitted
that the suit is pending before the Court of Assistant Collector, Malpura for adjudication of the rights of the parties on the land in question. Counsel submitted that the learned Magistrate was not competent to pass the impugned order for handing over the possession of the land in question during pendency of the civil litigation. Counsel submitted that once when the Civil Court was seized of the matter, the proceedings under Section 145 Cr.P.C. cannot proceed and must come to an end. Counsel submitted that under these circumstances, there was no justification to continue two parallel proceedings. The counsel submitted that the proceedings under Section 145 Cr.P.C. were initiated on 03.12.1998 and there was no apprehension of any breach of peace in the year 2022, hence there was no justification in passing the impugned order on 20.10.2022. Counsel submits that the order of appointment of Receiver was quashed by this court on 17.01.2003 while deciding S.B. Criminal Misc. Petition No. 633/2003 and accordingly the possession of the land in question was handed over to the petitioners by SDM on 18.02.2003. Counsel submits that till adjudication of the rights of the parties over the land in question by the civil court in the pending suit, no such order of handing over the possession can be passed in favour of Party No. 1, Mahaveer. Counsel submitted that under these circumstances, the impugned order dated 20.10.2022 is not sustainable in the eye of law and the same is liable to be quashed and set aside by this court. In support of his contentions he has placed reliance on the following judgments :- (Downloaded on 24/01/2023 at 11:46:47 PM)
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(i) Sudhir Singh & 7 Ors v. Suresh Singh & 3 Ors
[Writ C No. 54709/2013 decided on 10.07.2014 by Allahabad High Court]
(ii) Gayatri & Ors v. Ranjit Singh & Ors [Criminal Appeal No. 312/2018 decided on 13.02.2008 by Hon'ble Supreme Court]
(iii) Amresh Tiwari v. Lalta Prasad Dubey [(2000) 4 SCC 440]
(iv) Radmal & Ors v. State of Rajasthan [1994 (1) WLC 229]
(v) Mohd. Abid & Ors v. Ravi Naresh & Ors [SLP (Crl.) 5444/2022 decided on 01.11.2022 by Hon'ble Supreme Court] (13) Per contra, the learned Public Prosecutor opposed the arguments raised by the counsel for the petitioners and submitted that the impugned order dated 20.10.2022 has been passed by the learned Magistrate in continuation of the orders dated 30.10.2018 and 30.09.2022 passed by the Revisional Court and High Court respectively. He submitted that these orders have been upheld by the Hon'ble Apex Court vide order dated 25.11.2022, hence the learned Magistrate has not committed any error in directing the Tehsildar and SHO Todaraisingh to handover the possession of the land in question to Party No. 1. (14) Heard and considered the rival submissions made at the Bar and perused the material available on the record. (15) The undisputed facts of this case is that upon a complaint filed under Section 145 Cr.P.C. the learned Magistrate passed an order for attachment of the land in question. Subsequently on an application under Section 146 Cr.P.C. the SHO Todaraisingh was appointed as Receiver on 15.05.2001. However, the said order of appointment of Receiver was quashed by this court vide order dated 17.01.2003. It is worthy to note here that it was nowhere observed that possession was taken from Party (Downloaded on 24/01/2023 at 11:46:47 PM) (7 of 13) [CRLMP-99/2023] No. 2 at the time of initiation of attachment proceedings under Section 145 Cr.P.C., but the possession was handed over to Party No. 2 by the Magistrate vide requisition letter dated 18.02.2003. (16) The proceedings under Section 145 Cr.P.C. remained continued till October 2016 and same were finally decided on 24.10.2016 by the Magistrate and the possession of Party No. 2 i.e. petitioners was declared over the land in question. The said order was challenged by Party No. 1 before the Court of Additional Sessions Judge, Malpura District Tonk in Criminal Revision Petition No. 56/2016 and the same was allowed on 30.10.2018 and the order dated 24.10.2016 was quashed and the possession of Party No. 1 was declared over the land in question on 03.12.1998 and two months prior to attachment. Party No. 2 i.e. the petitioners challenged the said order before this court in S.B. Crimina Misc. (Petition) No. 7361/2018 and the same was dismissed on 30.09.2022 and the order dated 30.10.2018 passed by the Revisional Court was upheld and it was observed that the SDM has wrongly concluded that Party No. 2 i.e. the petitioners were in possession and two months prior to 03.12.1998 and it was also observed that the petitioner DW-1 Ramnarayan has admitted the possession of Praty No. 1 over the land in question. So it was found that the order of Revisional Court does not suffer from any illegality or infirmity. The above order of this court passed on 30.09.2022 was challenged by the petitioners before Hon'ble Supreme Court in Petition for Special Leave to Appeal (Criminal) No. 10956/2022 and the same was also dismissed vide order dated 25.11.2022 and the Hon'ble Supreme Court did not find any ground to interfere with the order dated 30.09.2022 passed by (Downloaded on 24/01/2023 at 11:46:47 PM) (8 of 13) [CRLMP-99/2023] this Court. However, a direction was issued to the civil court to decide the suit, if pending, expeditiously and preferably within six months.
(17) In continuation of the orders dated 30.10.2018 passed by Additional Sessions Judge, Malpura (Tonk) and order dated 30.09.2022 passed by this court, learned Magistrate has directed the Tehsildar and SHO Todaraisingh to handover the possession of the land in question to Party No. 1 vide impugned order dated 20.10.2022. No new order has been passed and the impugned order dated 20.10.2022 has been passed in consonance with the orders passed by the Revisional Court and High Court, which have been upheld up to Hon'ble Supreme Court. Hence under the circumstances, proceedings initiated under Section 145 Cr.P.C. and the orders passed on these proceedings have attained finality up to the Hon'ble Supreme Court. Now it is not permissible to the parties to reopen the concluded proceedings as it would amount to abuse of the process of the law.
(18) Once the Hon'ble Apex Court has put a seal to the first round of litigation against the petitioners then the second round of litigation by the same petitioners is not permissible. Thus the doctrine of finality has to be applied in a strict legal sense. Judicial propriety and decorum demands that the law laid down by the highest court of the land must be given effect to. (19) In M. Nagabhushana v. State of Karnataka (2011) 3 SCC 408, the Hon'ble Apex Court has held that the doctrine of res judicata is not a technical doctrine but a fundamental principle which sustains the rule of law in ensuring finality in litigation. The main object of the doctrine is to promote a fair administration of (Downloaded on 24/01/2023 at 11:46:47 PM) (9 of 13) [CRLMP-99/2023] justice and to prevent abuse of process of the court on the issues which have become final between the parties. The doctrine is based on two age-old principles, namely, interest reipublicae ut sit finis litium which means that it is in the interest of the State that there should be an end to litigation and the other principle is nemo debet bis vexari, si constat curiae quod sit pro una et eadem causa meaning thereby that no one ought to be vexed twice in a litigation if it appears to the court that it is for one and the same cause.
(20) Thus, the principle of finality of litigation is based on a sound firm principle of public policy. In the absence of such a principle great oppression might result under the colour and pretense of law inasmuch as there will be no end to litigation. The doctrine of res judicata has been evolved to prevent such anarchy. (21) In a country governed by the rule of law, the finality of a judgment is absolutely imperative and great sanctity is attached to the finality of the judgment and it is not permissible for the parties to reopen the concluded judgments of the court. It would also nullify the doctrine of stare decisis, a well-established valuable principle of precedent which cannot be departed from unless there are compelling circumstances to do so. The judgments of the court and particularly of the Apex Court of a country cannot and should not be unsettled lightly. (22) Hon'ble Apex Court in the case of Union of India & Ors v. Major S.P. Sharma & Ors (2014) 6 SCC 351, has held in para 83 to 88 as under :-
83. Precedent keeps the law predictable and the law declared by this Court, being the law of the land, is binding on all courts/tribunals and authorities in India in (Downloaded on 24/01/2023 at 11:46:47 PM) (10 of 13) [CRLMP-99/2023] view of Article 141 of the Constitution. The judicial system "only works if someone is allowed to have the last word" and the last word so spoken is accepted and religiously followed. The doctrine of stare decisis promotes a certainty and consistency in judicial decisions and this helps in the development of the law. Besides providing guidelines for individuals as to what would be the consequences if he chooses the legal action, the doctrine promotes confidence of the people in the system of the judicial administration. Even otherwise it is an imperative necessity to avoid uncertainty and confusion.
Judicial propriety and decorum demand that the law laid down by the highest Court of the land must be given effect to.
84. In Rupa Ashok Hurra v. Ashok Hurra and Anr AIR 2002 SC 1771, this Court dealt with the issue and held that reconsideration of a judgment of this Court which has attained finality is not normally permissible. A decision upon a question of law rendered by this Court was conclusive and would bind the court in subsequent cases. The court cannot sit in appeal against its own judgment.
85. In Maganlal Chhaganlal (P) Ltd. v. Municipal Corporation of Greater Bombay AIR 1974 SC 2009, this Court held as under:
"22. ...At the same time, it has to be borne in mind that certainty and continuity are essential ingredients of the rule of law. Certainty in law would be considerably eroded and suffer a serious setback if the highest court of the land readily overrules the view expressed by it in earlier cases, even though that view has held the field for a number of years. In quite a number of cases which come up before this Court, two views are possible, and simply because the Court considers that the view not taken by the Court in the earlier case was a better view of the matter would not justify the overruling of the view. The law laid down by this Court is binding upon all courts in the country under Article 141 of the Constitution, and numerous cases all over the country are decided in accordance with the view taken by this Court. Many people arrange their affairs and large number of transactions also take place on the faith of the correctness of the view taken by this Court. It would create uncertainty, instability and confusion if the law propounded by this Court on the basis of which numerous cases have been decided and many transactions have taken place is held to be not the correct law."
Thus, in view of the above, it can be held that doctrine of finality has to be applied in a strict legal sense.
86. While dealing with the issue this Court in Ambika Prasad Mishra v. State of U.P. AIR 1980 SC 1762, held as under:
"6. It is wise to remember that fatal flaws silenced by earlier rulings cannot survive after death because a decision does not lose its authority 'merely because it was badly argued, inadequately considered and fallaciously reasoned'."(Downloaded on 24/01/2023 at 11:46:47 PM)
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87. The view has been expressed by a three-Judge Bench of this Court in these very proceedings while dismissing the special leave petitions of Subhash Juneja and Harish Lal Singh vide order dated 23.4.2003 [Subhash Juneja v. Union of India (2006) 14 SCC 384]. This Court applied the doctrine of finality of judgment and res-judicata and refused to reopen these very proceedings.
88. Mrs. Kiran Suri, learned Counsel appearing for the Respondent, put heavy reliance on a decision of this Court in the case of Mathura Prasad Bajoo Jaiswal and Ors. v. Dossibai N.B. Jeejeebhoy (1970) 1 SCC 613, for the proposition that question relating to the jurisdiction of a court cannot be deemed to have been finally determined by an erroneous decision of the court. Further by an erroneous decision if the court resumes jurisdiction which it does not possess under the Statute, the question cannot operate as res judicata between the same parties whether the cause of action in the subsequent litigation is same or otherwise. In our opinion, the aforesaid decision is of no help to the Respondent for the simple reason that the facts and the law involved in the instant case and the earlier round of litigation the same. In para 5 of the aforesaid judgment, this Court has laid down principle, which reads as under:
5. But the doctrine of res judicata belongs to the domain of procedure: it cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby.
A decision of a competent Court on a matter in issue may be res judicata in another proceeding between the same parties: the "matter in issue"
may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and fact decided by a competent Court is finally determined between the parties and cannot be re-opened between them in another proceeding. The previous decision on a matter in issue alone is res judicata: the reasons for the decision are not res judicata. A matter in issue between the parties is the right claimed by one party and denied by the other, and the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. When it is said that a previous decision is res judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. A previous decision of a competent Court on facts which are the foundation of the right and the relevant law applicable to the determination of the transaction which is the source of the right is res judicata. A previous decision on a matter in issue is a composite decision: the decision on law cannot be dissociated from the decision on facts on which the right is founded. A decision on an issue of law will be as res judicata in a subsequent proceeding (Downloaded on 24/01/2023 at 11:46:47 PM) (12 of 13) [CRLMP-99/2023] between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law.
(23) Thus, it is well settled law that it is not permissible for the parties to re-open the concluded judgments as the same may not only tantamount to an abuse of the process of the law and court but would have far-reaching adverse effect on the administration of justice.
(24) The hallmark of a judicial pronouncement is its stability and finality. Judicial verdicts are not like sand dunes which are subject to the vagaries of wind and weather. It is well settled principle of law that "Quando aliquid prohibetur ex directo, prohibetur et per obliquum" meaning thereby one cannot do indirectly what one cannot do directly. The attempt in this petition is clearly to seek a substantive modification of the judgment passed by this court on 30.09.2022 which has been upheld and approved by the Apex Court on 25.11.2022. Such an attempt is not permissible under any law.
(25) There is no force in the arguments raised by the counsel for the petitioners now at this stage where the matter has been decided and concluded up to Hon'ble Apex Court that the proceedings under Secton 145 Cr.P.C. were not maintainable as the civil suit is pending between the parties for adjudication of their rights. It is worthy to note here that the Revisional Court or the High Court have not determined the rights of the parties but only findings have been recorded that Party No. 2 was not in (Downloaded on 24/01/2023 at 11:46:47 PM) (13 of 13) [CRLMP-99/2023] possession, two months prior to the date of initiation of proceedings under Section 145 Cr.P.C., of the land in question on 03.12.1998. Obviously now the Civil Court would decide the rights and title of the parties over the land in question at the time of final adjudication of the pending suit before it. The judgments relied by the counsel are not applicable in the facts and circumstances of the present case.
(26) Analysing the entire facts of the case and material provided in the court and upon a cumulative consideration of the matter, this court is of the definite opinion that learned Magistrate has not committed any error while passing the impugned order dated 20.10.2022.
For the reasons aforesaid, this petition fails and accordingly the same is dismissed without any cost.
Stay application and all applications (pending, if any), also stands dismissed.
Needless to observe that the Civil Court would adhere the directions issued by the Hon'ble Supreme Court and decide the pending suit within the stipulated time.
(ANOOP KUMAR DHAND), J.
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